Is ICC Duterte’s Waterloo?

“Criminal case vs Duterte filed before International Criminal Court” …screamed Philstar headline. There is no case against the president, at least not yet. The self-confessed hitman Edgar Matobato, through his lawyer, lodged a complaint at the ICC against Duterte and 11 others, that’s what transpired.

There are only 3 ways a case may be initiated at the ICC :
– by a state who is party to the Rome Statute
– by a referral from the UN Security Council (UNSC)
– by the ICC Prosecutor choosing to investigate a certain case.

The Office of The Prosecutor (OTP) will firstly determine if the ICC has jurisdiction. It may only exercise jurisdiction if:
– The accused is a national or a state party
– The crime took place on the territory of a state party
– Crimes were committed after 2002
– The crimes are war crimes, genocide, and or crimes against humanity
– OR if the UN Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the perpetrator or the location of the crime

The OTP will then study Matobato’s documents and if it so desires to take up the complaint, it will proceed with an investigation. Investigators will come to Philippines to gather evidence and question respondents, victims and witnesses. It will require assistance from the state agencies like PNP, NBI, and PDEA as well as international organisations like CHR.

The OTP then puts up a case and requests the Pre-Trial Chamber to issue warrants of arrest or summonses.

The difficulties of executing arrests

Now comes the reality check. The ICC has no policing mechanism. It requires States to execute its arrest warrants. How does one arrest a sitting head of state? Will Duterte arrest Duterte is a ridiculous question. Same goes for an ex-head of state who enjoys protection from an incumbent regime for various reasons.

People do travel, so arrest is possible whilst on internatiobnal flight. ICC will seek the assistance of various third party countries when travel plans of indictees are known, or places where they have business, properties, mistresses, etc. Non-signatories of the Rome Statute may choose not to oblige such requests, but signatory states are required to comply. So far there has been only one incident – Bosco Ntaganda, an ICC inductee wanted for recruiting child soldiers in the Rep of Democratic Congo, who surrendered to the US embassy in Rwanda. The US is not a signatory of the Rome Statute, but they handed him over to the ICC.

Here’s a second reality check. Under international law, the doctrine of sovereignty provides immunity for heads of state. This is the foundational principle of the United Nations. That is why if ICC refers to the UNSC, it is difficult for the latter to issue orders against a sitting head of state. Leaving political biases aside, a UNSC order can lead to state conflicts. That is why the Rome Statue provides for an escape clause. Article 98(1) prohibits the ICC to make a request for surrender or assistance if it would require the requested State to breach its obligations under customary international law with respect to diplomatic immunity. This provision is designed to avoid any tension between requests from the Court, with which States Parties are obliged to comply, and international laws providing immunity from national proceedings for officials of a third state.

So far, UNSC has only acted on an ICC referral regarding Omar Hassan Ahmad Al Bashir. The gentleman is still sitting pretty as president of Sudan.

Can a State itself hide behind the shield of diplomatic immunity and refuse to execute the arrest warrants against its own national? No can do. Article 27 of the Rome Statute of the ICC explicitly provides that the Statute applies equally to all persons without distinction based on their official capacity. That means Philippines govt can arrest any Filipino, including the president, and hand them over to ICC, but it cannot arrest any foreigner holding diplomatic immunity.

Arrest is no easy matter in reality. The ICC has issued 21 arrest warrants, nine remain at large and three others are in the custody of state authorities.

Trials in Absentia

This is troublesome because it violates internal law and undermines the Court’s legitimacy. The Rome Statute allows trials in absentia only where the defendant repeatedly and continually disrupts proceedings and has to be led away. They are already in custody, but not presented in court.

Naysayers — there will be no trial

Malacanang, PNP Chief Bato, presidential legal counsel Panelo, and Senator Cayetano made light of the seriousness of the situation. As one Facebook contributor said, they think they can TRO the problem away. Other than the cliched ‘propaganda’ and ‘de-stabilisation’, here are two usual views :

Senator Lacson : The complaint is bound for the dustbin. Perjured witness has no value.
Everybody makes mistakes, so do witnesses. Courts understand that. Real lawyers know that when it comes to witness credibility, the court views the evidence in it’s totality.

Senator Sotto : ICC has no jurisdiction for offences in Philippines where victims are Filipino citizens.
He should go read up the Rome Statute. Perhaps he does’nt want to quote the Rome Statute for fear of accusation of plagiarisation.

Napoleon Bonaparte said “Never interrupt the enemy when they are making mistakes”. For his own sake, one certainly hopes the president starts looking around for a real outstanding lawyer instead of relying on the counsel of Panelo, the one with a perpetual smirk, flamboyant dress code, and legal views that are non compos mentis. For the ICC might well be Duterte’s Waterloo.

In light of the difficulties of arrest, let’s examine the possibilities.

Firstly, we shall see what resistance the Philippines govt will offer to an ICC investigation, having watched the go-arround they gave to the UN CHR not too long ago. Less it be misunderstood, ICC has conducted investigations into far worse, broken, violent, and unpredictible countries in the dark continent. They are made of sterner stuff. Malacanang will find the ICC a different adverserial force compared to the CHR. Any direct physical threats to the investigators will see UNSC actions that bite.

Fellow indictees of Duterte will be protected in Philippines so long as the latter is the sitting president. However, they will realise that unlike the president, they have no diplomatic immunity. The president is protected under Article 98(1). The other inductees will be arrested the moment they travel outside of Philippines. They will also need to consider whether Philippines will remain a safe haven under future presidents.

If Duterte is indicted, nothing will happen as long as he is the sitting head of state. He will spend the next few years ensuring the succeeding President is beholden to him, as he has been to ex-President Arroyo. That is not fool-proof because (1) not being a head of state he no longer enjoys diplomatic immunity and will be arrested once he travels outside the country, (2) a friendly new president may need to revise his priorities under pressure from UNSC and may sacrifice the Queen.

There is yet another reality check. The bane of international action against war crimes is the use of veto powers in UNSC. Permanent members of the UNSC has veto powers which are always applied injudiciously on political motivations. Russia and China both have veto powers. The fate of Duterte et al in an UNSC action rests on the continuing special relationship of Philippines with the two red countries. Should a new admin make a 180 degree turn to pivot back to the West, Putin and Xi, or their successors, will no longer have any reasons to veto UNSC actions against the indictees.

Under an unfriendly new president, one that abides by international laws, all indictees including Duterte, has only two options left — run to the Chinese or Russian embassy. Both Russia and China are not signatories of the Rome Statute so they are not treaty bound to hand over the indictees to the ICC. However, even if they were granted asylum, they can’t leave the embassy premises and risk arrest the moment they step out. They need to be prepared to sleep in the embassies for a long time. How long will Russian and Chinese patience last for a bunch of guys who has by then become an embarassing liability. The indictees are well-advised to watch the movie “The Terminal” and learn how Tom Hanks survived months living in diplomatic limbo in a terminal in Charles de Gaulle airport.

To trial or not to trial

For Senators Cayetano and Dick Gordon, it’s unlikely they will be indicted for the simple reason they are not the Executive and has no active participation whatsoever. They are as guilty as the other 16 million people for turning a blind eye, indeed, for cheering on the state’s misdeeds. But they can’t be jailed for that. However, even without being indicted, Dick Gordon will deservedly suffer the most personal damage as the investigation turn on the spotlight his despicable role in the Senate inquiries on the Davao Death Squad. Just wonder who would love to sit at his table in the next international meeting of the Red Cross. How does one reconcile the role of chairman of a great humanitarian organisation to his devious act in terminating abruptly the senate inquiries on extra-judicial killings.

For PNP Chief General Bato, he will soon realise that for all police matters, the buck stops at his office. If the orders for all those police killings did not come from his boss, then all reasonable minds will assume it emanated from him. There obviously has never been any Executive Orders for the killings, nor will there ever be any documentary trail of such orders from the top honcho. Everybody knows that. Motabato knew that.

For DOJ Sec Aguirre and other Executives, they are in the same boat as Bato as regards orders from the top. They will realise why the AFP is the most professional and smartest agency in the state when they said as soldiers they will obey their Chief’s command to help out in the drug war but they are waiting for presidential written orders.

When it comes down to saving their own skins, executives will throw the commander under the bus and plead the ‘Nuremburg defense’ — “I simply did as ordered.” This has been the template defense in many war crime trials. The ICC has seen too many of these, and whilst they are many arguments of pros and cons, carrying out apparently illegal orders has seldom won the day for war criminals at ICC.

ICC trials will offer the great opportunity to expose to those in the lawyering business in Philippines, as well as those that sit on benches, and of course an eager public, what a real and proper judiciary process is like. There will be no TROs, no affidavits, no notarisation arguments, do dilatory and delaying techniques, no Aguinaldo Doctrines, no bought witness accounts, no neck braces, no defense lawyer absenting, no false documents, no Imee Marcos money, etc… in short no regular Filipino court monkey tricks.

Conclusion

And lastly, for those who perished and denied due process – the small time drug pushers, the users, and the wasted lives of mistaken identities, the innocent bystanders, the innocents who were maliciously placed on the kill list, (all from the poorest and shanty part of towns) — who were mowed down mercilessly, and in death, desecrated with tapes and naked cadavers stacked up high like animals in funeral parlours because family members are too poor to pay for their release;

as well as for their aggrieved families, relatives, and friends who have nowhere to turn to for justice with sycophantic state apparatus stacked against them; who suffer the indignities of having to foot the bill of the police’s cost of operations against the deceased; who have to pay police-accredited funeral parlours that charge higher rates to pay commissions to the police; who are too poor or to scared to seek legal redress…

For them whose fingers must point to not just the indictees, but the sycophants in the executive, legislative, and the judiciary, to social, religious and business leaders who should stand up and help bring sanity to the land but chose to hide in the safety of their silence, and lastly to the 16 million who cheered the mad killings as a short cut way to eradicate crime.

For them a sliver of consolation with this to shout out :

“With the Rome Statute, nobody is beyond the reach of international justice. Nobody can side with the criminals and against the victims. … International human rights justice is in motion.”
……….Luis Moreno Ocampo (first prosecutor of ICC)

This note incorporates my reading of Irineo and edgar below: my fondest hope is that the ICC’s Office of the Prosecutor conducts a serious investigation, at the very least.

My additional thought is that depending on how China, Russia, including US. do their realpolitik analyses for their own interest, the matter may be maneuvered into the UNSC — no matter whether it is a mere side issue — so that it can be vetoed by anyone of the three. (Talking without knowledge of the procedure here.)

chemp, Thanks! we were just talking about this (with Micha & Vicara) on the other thread. Looking at the listed crimes entertained by this court, looks to me like Crime of aggression is the most relevant—- Genocide doesn’t apply; Crimes against humanity is just lesser Genocide, doesn’t quite apply either to DU30; then there’s War crimes, also doesn’t fit,

but you do have a catch all type crime, if you can’t get ’em for the 1st three crimes:

1. It is understood that any of the acts referred to in article 8 bis, paragraph 2, qualify as an act of aggression.
2. There is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations.
3. The term “manifest” is an objective qualification.
4. There is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation of the Charter of the United Nations.

Elements

1. The perpetrator planned, prepared, initiated or executed an act of aggression.

2. The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.

3. The act of aggression – the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations – was committed.

4. The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations.

5. The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations.

6. The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.

(…… all six elements if argued well would pertain; if convicted though, then the danger is it would also place many 1st world leaders in the same proverbial hot seat—- how to balance that off? ….. but yeah, looks like Crime of aggression is all there is, chemp… unless i’m missing something here……)

I was thinking this , the or “… or in any other manner inconsistent with the Charter of the United Nations” (whatever that means, but I’m sure it would include ethical stuff, like Rule of Law, Human Rights, etc. etc.)

Not so simple, me thinks, edgar… that “civil population” has been the bane of American military and police operations since 9/11, ie. “unlawful combatants”.

Just as terrorists aren’t “armed forces”, violent criminals can take on the mantle of society’s cancer thus justifying said enforcement…. kinda like what’s happening in Mexico, only their presidents aren’t advertising EJKs like DU30. Again eroding a nation’s sovereignty , hindering it to carry out police operations (legal or illegal), is the higher legal principle here… a slippery slope.

I’m interested in how civilians will be define within the context of a drug “war” nonetheless.

Lance
I prefer to bring the discussion away from the legalities of constitution of a crime. I’m sure better minds have assisted Atty Jude Sabio and poured over the details to conclude that crimes as spelt out in the Rome Statute has been committed.

I’m sure their request for investigation was sound, it just seems to me all this is Letter of the Law vs. Spirit of the Law type of deal, chemp. And the Spirit here is to respect a nations sovereignty, especially if that nations leader still enjoys support from his people… how to balance all that off is the question i suppose.

but i agree legalities aside, the Spirit of the Law should be focus here.

I don’t respect of sovereignty is an issue because ICC has jurisdiction only on states who are signatory to the Rome State. All states understand that under given situations, international law takes over . its voluntary subjucation.

Regarding the poor state of the judiciary, one way may be to outsourse some functions. Leave aside national pride.. Long ago in Singapore, our last legal recourse was the Supreme Court in London . it’s not a far fetched idea. So it’s subjugation, not trampling over sovereignty

I understand subjugation, chemp. But the ICC is still a baby, its taken out African leader criminals, but even the African Union now are complaining that it’s just basically them getting indicted left and right (how about the 1st world?).

So the ICC, like our Supreme Court here also picks and chooses its cases, interest of justice is one great high falutin’ principle, but above that is also a court’s legitimacy (its gotta continue right?)—- so that and national sovereignty will be the balancing act.

But if they indict , even entertain such investigation, of a president (head of state) that enjoys popular support, that’s probably not the sovereignty issue they want to challenge and prosecute first (I could be wrong, maybe the ICC is more adventurous, and more high minded, but their track record shows they are picking and choosing choice criminals).

The point here is that the ICC is still looking to legitimize its power to affect justice—- now if the ICC indicts Obama for his drone wars, causing mass murder in a much larger scare, now that’s a case worthy of ICC!!! 😉

You are right. There are a few African countries thinking of withdrawing from the Rome Statute. I’m sure one can withdraw from international treaties but there is probably some penalties involved. But we should note that those considering this move are more likely those with lots of skeletons in unmarked graves. Don’t be surprised Philippines will choose to leave too, citing BFF China and Russia as non-members.

Strange thing these African countries. It started with South Africa. And it started with a African states forum held in Pretoria. Every one was flying into the SA capital, including the Sudanese President AlBashir. The SA supreme court has an ICC arrest warrant waiting at the airport for alBashir so everyone expected him to be arrested. Eventually, the SA govt allowed him to fly out. The reason being SA felt that if they arrest alBashir they can kiss goodbye to orgainising future African state programs. It was business, not politics.

Following that incident, SA declared its wish to withdraw from the Rome Statute.And some other African states followed suit, typically those with impending ICC cases. Ban Ki Moon and several other African states have made overtures to those states not to leave.

It should be highlighted that ICC is meant to protect nationals, not the States. The usual accusation of ICC partiality against African states is unfair. The fact that all indictees have been from Africa underlies the fact that institutions there are weak, that ICC takes cases after 2002, and that majority of atrocities against nationals are committed there. That’s fact, not politics.

As to ICC picking and choosing cases I have no basis to say anything.To soften this criticism, they have taken on many prosecutors from African states, and if you noted, they recently took on one from the Philippines, the guy who replaced the late Miriam Santiago.

As to more worthy cases — other than Obama we could add Bush, or Putin (at least for two civilian jetliners shot down by Russians directly or indirectly + many other incidences), or Xi for atrocities in Nepal or the Uighurs. I mean why stop at Obama.

Hence the slippery slope, chemp, why not stop at Obama? And exactly why the US isn’t partaking (this I’m sure both W. Bush and Obama would agree),

I mean if we’re gonna play world’s policeman, we need some room to maneuver here, mistakes and some mass murders will occur, when you get an elephant in the room, and you gotta bunch of rats (lets use bunnies they’re cuter) on the floor, bunnies will die. My point is this use of force stuff is bloody…. no matter how well intentioned, how do you differentiate from ill intentioned use of force? it’s hard.

Don’t get me wrong on paper, the ICC seems like a really good idea. But if people of the world see violence only as black and white (no pun intended), then I don’t see this little experiment succeeding. The State’s powers remains three-fold, taxation; imminent domain; and the ability to use force, you cut one off, and you’re essentially re-defining the state and creating something totally new (a new world order)… I don’t know if this something new is a good or bad thing, but do know for sure that the world is not ready.

I gotta feeling he’s NOT gonna wiggle out, chemp… either he’s really sure that the ICC won’t snag him; or as a lawyer he’s just really confident of the law and where he stands; or he just doesn’t care.

So I guess no withdrawal from the ICC anytime soon, he’ll see the process thru… which in a weird way is commendable, in a … ‘fall on my sword’ sorta way.

i’d figure he’d get all lawyerly and say stuff like ICC has no jurisdiction or argue state sovereignty, etc. but instead he said if indicted he’ll go to jail. that’s basically a promise, not so much a lie. If he backpedals, then that’s a different story; but my point is he could’ve said other stuff, instead of saying he’ll gladly take the punishment.

*******
To me, it matters not that the ICC filing will not be taken up. Or that, if it should be taken up, there will be a trial. Or that, if indeed there be a trial, the indicted dramatis personae are adjudged guilty.

For me, it is sufficient that the case has been filed and caught the world’s attention. Sufficient that more people have become aware that there is a criminal case to be made against Duterte and his henchmen. Sufficient that there has been a pause and a lessening in the killings. Sufficient that the pause has caused the original questions to be raised once more:

o Is the ending of life to protect life the right path?
o And will the ending of life bring about the promised peace?

In short, it is sufficient for me that the evil has been brought to greater light. And that the leaden scales may fall off from the eyes of those who plan evil, perform evil and support evil.

This may be too much to wish for. But sufficient unto the day is the evil thereof. Let tomorrow, even for a day, bring in happiness from misery, comfort from pain, and surcease from sorrow.

Yet should the filing be taken up, a trial raised, and judgments of guilt be brought down, then there will be cause for joyous celebration.
*****

Yes Edgar, however repugnant the whole affair has been, however much our sensibilities have been assaulted, it’s not healthy for us to approach the matter with vengeance in our hearts.

As for me, I wish for it to go to trial to give justice to those who have nowhere to go as well as closure for them. I wish it so that the madness may stop. I wish it for Filipinos to see real judiciary process.

*******
Another consideration at the back of my mind is: Why does the Philippines have to go outside the country to sort an internal matter? We are always running to and relying on someone else and not on ourselves.

This is an “extrajudicial” step in the sense that it is not a regular part of our internal legal proceedings.

The SCS dispute required international intervention because the parties were two states.

Here, we are talking of parties within one state.

This point is about self-reliance and self-sufficiency. In the US, Nixon was made to resign by the force of legal and press opinion. Trump may well be forced to do likewise if the investigations into inappropriate Russian connections bear fruit.

We must develop these strong internal mechanisms of checks and balances to succeed as a nation. Otherwise, we will continue to be prey to the next Marcos, Arroyo, or Duterte.
*****

Edgar, fully agree. But for that, the idea of rules for all (and not selective rules to give an advantage to one’s own “tribe” and I include the yellow tribe to some extent as well) must get into the damn thick skulls of Filipinos. When that is internalized, the rest isn’t so hard.

*******
1. Let me focus on the first statement: ”That is why ICC requires that they only take on the role after determining State has shown to be unwilling to prosecute.

2. The statement is absolutely true. However, it has the quality of a non sequitur from my main point of self-reliance, of developing strong internal mechanisms of checks and balances.

3. The statement contains two conditions:

o Condition x = the State has shown to be unwilling to prosecute
o Condition y = ICC requires x for it take on the role

3.1. Condition y is contingent on x. Condition y is the consequent of which x is the antecedent. Condition y can only happen if x is satisfied, but it is not certain to occur.

4. Let me repeat: from the perspective of ICC, the statement is absolutely true. But from the perspective of a Filipino patriot, it does not necessarily follow (!) that condition y must follow x. This is because condition y is independent of x.

5. I believe this type of illogic is called “Affirming the Antecedent.”

5.1. It has the form:

If p then q.
q.
Therefore, p.

5.2. As applied:

If ICC takes on a case then it has determined the State is unwilling to prosecute.
The State is unwilling to prosecute.
Therefore, ICC takes on the case.

5.3. As we can readily see, the conclusion does not follow from the premises. Firstly, because any action on the part of ICC is voluntary. And secondly, from the view of a Filipino patriot, because there is no inherent relationship:

5.3.1. Between the State’s unwillingness to prosecute and the ICC taking on the State’s case.

5.3.2. Between developing strong internal mechanisms of checks and balances and the ICC taking on the State’s case. (I must say though that the ICC stance recognizes the insufficiency of such internal mechanisms.)

6. So I half-agree with the first statement and fully agree with the second statement.
*****

I am trying to learn about the Rome Statute which established the ICC as it relates to the current blog topic. I hope you can help me.

Firstly, I agree with edgar that the following is not a valid inference:

Schema 1 p > q
q
therefore, p

The following however, is a valid inference:

Schema 2 p > q
p
therefore, q

Now my concern really is on our instant case. Let me phrase it as follows:

First, the setting — the concerned state is a signatory to the Rome Statute which established the ICC.

Second, let me define p and q, then tie them in the third line

p = Person A is a heinous criminal about whom the state is unable or unwilling to prosecute.

q = under the ICC, if the case of A is brought before it, ICC can or should prosecute.

Meaning p > q. Am I right here?

Of course, to go and use the valid inference in Schema 2 — that is, for ICC to prosecute, the complainant has the burden or needs to show to the ICC Prosecutor, together with the latter’s own investigation, that indeed p is on solid legal ground. If p is valid, then the ICC Prosecutor can do q. Unconvinced, the ICC Prosecutor should or will not proceed on q.

Is my reading correct? May be this query is already answered in the discussions here, but I am on my usual slow speed here.

I agree Edgar. There is a moral issue here, a very strong one since the president had openly said what he would do. Hence my penultimate paragraph on where to point the fingers, where blame squarely falls – inductees who actively participated in wrong doings, sycophants who actively condescended to those acts, 16 m who voted for those acts.

It nicely puts the spectrum from the lowest expectation to the full bore ICC prosecution and indictment. And I agree that even in the lowest expectation — the mere filing of the complaint by Lawyer Sabio in behalf of Matobato and whatever little consideration the ICC Prosecutor accords — even it does not lead to a formal investigation, has served its purpose as described in the referenced comment. Even in a small way — and really only time will tell of its full impact — Sabio/ Matobato has done the PH a service, no matter how the move is belittled by Duterte and his camp. History will record Matobato in a higher plane than Mocha Uson.

I was prompted to write this after I gleaned two regular media reports on the breaking story only to find they were 70% cut and paste of a Wikipedia article on ICC procedure. I thought surely they could have done better than that.

Pls note I’m not saying lm any better. Just saying let’s make it more lively

And I can’t stand it when media keep referring to Atty Jude lodge complaint. It’s Matobato who lodged the complaint. Worse is the nincompoop who threaten to disbar Atty Jude. Can you imagine guys like him running the prosecurial office of the country!

“The list goes on. Thousands dead without any condemnation or curbing. A Korean kidnapped, killed, cremated, and flushed down the toilet. Protestors run over by a police van. Drug watchlists compiled by barangay officials and informants and kept confidential and unverified. Cops executing four innocent men while one survivor has to go into hiding and the Supreme Court has to issue a writ of amparo against cops in order to protect the victims’ families. Two women allegedly raped by police after cops raided a house and did all the shabs. Two suspects rubbed out in a jail cell and their killers then promised pardons and promotions. Cop caught selling shabu. Two cops unmasked as vigilantes riding in tandem. Nearly 100% kill rate whenever cops end up firing their guns against suspects… the list goes on.

In any right-minded country, any one of these scandals would cause waves and prompt public investigations. But not in the Philippines.

Are we really wrong in demanding accountability for these?”

ACCOUNTABILITY. Something the Filipino entitled are not used to… let them face the music.

Yes Irineo, I agree Filipino passivity to such incidences is bad. So many many other instances. I’ll add 2_:

– when a city prosecutor said they planted evidence. The supreme court, bar associations, law professors, judges, DOJ, top law practitioners — not a word was spoken. What should have happened is all cases that he prosecuted should be declared mistrials, and all jailed be set free. It’s that serious. In fact he should be thrown in jail.

– when a chairman of Pagcor said he has the right, and he has given out 10 million pesos as lotto prize winnings to someone who needed financial aid. Can you imagine that.

No Manila politicos dared to go Mindanao.
What a shame to the whole nation of Philippines, that a little woman with such bravery should be in detention for doing a job nobody dared to touch. Imagine after being elected Senator, if she turned sychophant like those brave boxer, had she suckered up tp the mayor and kept her mouth shut, imagine what she could have reaped.

Which is why there’s animosity towards “Imperial Manila”, and so almost everyone being egged to approve, um, federalism when it sounds more like secession and greater absolute power to sultan-warlords.

An enlightening read, Sir. Thank you for clarifying the importance and great significance of bringing up a case to ICC. I hope and pray the defendants (if I am correct in labeling them defendants) get what is due them.

They are respondents to a complaint with every right to air their points of views and refute the complaints. But debaring the lawyer who represented the complainant is the mindset of one with sheer impunity.

Court of last resort
Abella, however, said the case will not prosper since the ICC is a “court of last resort,” and Sabio has not yet exhausted legal remedies in the country.
“(An) independent Senate investigated the charges hurled against the President with self-confessed hitman Mr. Matobato as star witness. As such, there is no unwillingness or inability on the part of the State to investigate and prosecute the President,” Abella said.
But Trillanes said there were only two Senate investigations, which he claims were “abruptly terminated” by the President’s allies.

———-

The much maligned Senate Investigations accused to lead to nowhere is the first resort because it recommends the next actions.
But, it was abruptly terminated with no interest of reopening the investigations.

The immunity from suit of the president makes it next to impossible for our courts to act on it, that is why we need outside help, this is not a short cut.
EKJ is a short cut.

National Law prevails over International Law.
Constitution prevails over Roman Statute creating ICC.

Constitution prevails and is Supreme over Treaties and other International Agreements

If an International Law conflicts with National Laws or the Constitution, then that International Law has no force and effect within our country.

Philippine Constitution says the President is immune from suit and may be removed only through Impeachment Proceedings.

Roman Statute says ICC can prosecute Nationals of a certain member state.

Can ICC prosecute the President of the Philippines?

No, because the President is immune from suit under the Constitution. Roman Statute cannot prevail over Philippine Constitution which protects the Presidente from suits for purposes of stability of the government. Roman Statute then has no force and effect with respect to the President. ICC therefore has no jurisdiction over Duterte.

If the President is immune from suit and there is allegation of conspiracy with other government officials, then no case can stand against one or all persons charge with the President.

Well, there is certainly lots of legal rigmarole to debate, and it seems to me any ICC action takes years and years to bring to culmination as everyone is given their due process and three months to respond to a simple procedural letter. I think the trial is more in the eyes of investors, humanists, and people of integrity within the Philippines, presuming there are enough to make a difference. They all have voices, expressed one way or another, and if the weight is strong enough, the President will be punished, and if the weight is not strong enough, this government by impunity will continue to stack Filipinos by worth, from powerful to powerless, and the least of them will continue to be exterminated.

Thanks. Since cases drag five years is a short time.
As the author stated in his article.

“If Duterte is indicted, nothing will happen as long as he is the sitting head of state. He will spend the next few years ensuring the succeeding President is beholden to him, as he has been to ex-President Arroyo. That is not fool-proof because (1) not being a head of state he no longer enjoys diplomatic immunity and will be arrested once he travels outside the country, (2) a friendly new president may need to revise his priorities under pressure from UNSC and may …..”
—-
So why the hell bother?
We will soon find out.

Being a non-expert on law, I’m not going to argue about this except to say:

1. ICC have indicted and persecuted many before, some were heads of states. They have all been African states. These were Rome Statute signatories, and certainly they have constitutions basically similar to Philippines in so far as immunity of the head of state is concerned.

2. As I have indicated, the ICC can’t touch a sitting head of state. But once he is an ex-head, he is at the mercy of the new head of state to decide if he should be turned over. Also, as a private citizen, he will be arrested once to travels out the country.

3. What exactly are the immunities given to the president under the Constitution? It certainly does not cover criminal acts for which he remains liable after he steps down.

4. What is a ‘law’. It has meaning only if it affects human behaviour. It has function only if it can be implemented. Thus we have the enforcement, prosecutorial and correctional agencies. But all these are state internal institutions. Thus we have the ‘modern state conception’ as only the state can enforce the law by coercion. In other words, domestic law is meaningful, whilst international law is not.

5. Looking through the prism of coercive enforcement is myopic. International laws are enforced through non-coercive ways through what is known as ‘externalised outcasting’ . This is by way of denying privileges and benefits of memberships to defaulting state.

6. If a state has a tendency to disrespect international laws, agreements or treaties, it eventually outcast itself from the international community to it’s own detriment.

7. Philippines is slowly gaining this reputation. For example, I can’t remember names, but there has been a case not too long ago. Philippines court rejected the decision of a foreign court in a civil case between 2 contracting parties. In other words, Philippines will not recognise the clause concerning jurisdiction of governing law in business contracts.

*******
Personal opinion and not a legal opinion: no, I do not agree with the author.

1. Three principles:

1.1. Nothing is absolute.
1.2. No man is above the law.
1.3. The president may be sued for unofficial conduct. Unofficial conduct may be:

o Crime(s) committed before his term.
o High crime(s) committed during his term.

2. Wikipedia: “The charge of high crimes and misdemeanors covers allegations of misconduct peculiar to officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, conduct unbecoming, and refusal to obey a lawful order.”

2.1. High crimes, but not misdemeanors, are a ground for impeachment, but not a suit, in the Constitution. Because impeachment is a game of numbers, I would approve of a suit being filed and for the Judiciary to weigh and exercise its discretion.

2.2. De Lima’s test case rests on the argument that the President has committed an unofficial act for his “verbal attacks on petitioner’s womanhood and threats on her person.”

2.3. I would construe Duterte’s defense of the policemen involved in the execution of Mayor Espinosa as perjury of oath, abuse of authority, dereliction of duty, and conduct unbecoming.

3. If it can be proved that Duterte masterminded the death squads in Davao, this is before his presidential term, then this would also constitute an unofficial act. Note that the ICC document includes DDS charges.

5. As I have stated, there must be a strong internal mechanism to unseat a president who is openly performing unconstitutional acts. As impeachment is a weak mechanism, we must look at the Judiciary and other means — say, a public referendum or a recall petition.
*****

Chemrock, the battle of Waterloo in Belgium was the final battle in the Napoleonic wars which lasted from 1791 till 1815, a total of 24 years.. So I am not sure that the analogy is appropriate to Duterte.

Be that as it may, I have been thinking about the ICC and what it has done and not done.

1 : None of the other countries which have waged a war on drugs ( the USA, Mexico, Colombia, El Salvador, Portugal etc ) have ever had their heads of state or government referred to the ICC because of their domestic policies dealing with illegal drugs and drug users or pushers; I repeat None. I suspect that a drug war against domestic illegal drug sellers & users would not get up as an ICC case.

2 : There have been heads of state who have conducted wars against particular ethnic groups or religious groups. Examples that come to mind are the president of Sudan for his governments war on Christian South Sudanese; & Slobodan Milosovic for his crimes against Muslims & Catholics in Bosnia Hertzogovina after Yugoslavai fell apart.

3 However the Sudanese president is still at large and ‘presidential’. Somebody tried to have arrested and charged in South Africa last year ( ? ) but the South African government blocked this legal action.

4 Virtually all states see themselves as sovereign. The USA not being a signatory to the ICC is a major example. There are numerous other such states.

5 Sovereign states governments may also sign international treaties but always reserve the right to interpret these treaties and reserve their rights as to when to act on them.

Meeting with one’s Waterloo is a way of saying meeting with one’s ultimate obstacle and final defeat. Pacquiao has lost many local fans due to his politicking and sycophancy, many are now wishing he will meet his Waterloo at the hands of Jeff Horn.

1. That makes Philippines a precedent case – no honour in that actually.
Oct 2016 – The ICC Prosecutor Fatou Bensouda “I am deeply concerned about these alleged killings and the fact that public statements of high officials of the republic of the Philippines seem to condone such killings,” She further added the extrajudicial killings could be prosecuted by the ICC if they are “committed as part of a widespread or systematic attack against a civilian population,”
We’ll leave it at that.

2. Yes I’m sure there are many other atrocities all over the world. ICC is not proactive, they are reactive. No complaints, not case. So give a clap to Philippines for having still enough vestige of bravery to come forward where others fear to thread.

4/5/6 – I’m not quite sure international treaties are signed with caveats that interpretations are open to signatories. What’s the purpose then. But parties to agreements or contracts will always try to wriggle their way out when they find themselves disadvantaged. Filipine law practitioners are experts in this. That’s why treaties or contracts must always be as airtight as possible, but there will always be the ‘d’ day factor — that soething that everbody overlooked, or something that has never ocurred before, that becomes contentious grounds. That’s why we have the courts to argue it out.

So presumably the leaders of the USA, Mexico, Portugal, Colombia, El Salvador etc. will also be charged via the IRC afterwards ?

That’s what makes me quite doubtful. It rocks too many boats and sets too many precedents. So I think it will be blocked or shunted into everlasting international discussions not withstanding the ICC prosecutor’s wishes.

US is not a signatory of the Rome Statute so they are not governed under the ICC. Ditto Russia and China and a few others.

Portugal, El Salvador, Columbia — if nobody lodge any complaints, there is no action. Its the court of last resort.

ICC’s prosecutor’s ‘wishes’ mentioned above is to add weight to the possibility of the complaint prospering into a case. (In response to your view that a case is unlikely) The seem to take a Prima facie view of what’s going on here as qualifying for a case. Subject of course to their investigation.

ICC is merely responding to pleas of a state’s citizens. It’s not a state taking an action on another state. That would be via the UNSC. In this Philippines case, I don’t know which boats it will rock, possibly the Chinese.

I don’t see polling records of the previous state leaders indicted by the ICC, but I’m sure polling would matter whether officially or un-officially in determining the ICC’s decision to entertain or proceed with the DU30 investigation.

So in regards to these pleas, does it matter how much (the actual number) of the citizenry is expressing this plea, chemp? I mean if DU30 has support, wouldn’t his indictment also represent the indictment of a nation’s citizenry’s wishes for itself?

I’m sure DU30’s polling would come into play, whether it’s considered officially is another story.

This talk reminds me a lot of Star Trek’s Prime Directive:

“the Prime Directive is the guiding principle of the United Federation of Planets. The Prime Directive, used in five of the six Star Trek-based series, prohibits Starfleet personnel from interfering with the internal development of alien civilizations. This conceptual law applies particularly to civilizations which are below a certain threshold of technological, scientific and cultural development; preventing starship crews from using their superior technology to impose their own values or ideals on them.”

—–
meet your Waterloo. if someone who has been successful in the past meets their Waterloo, they are defeated by someone who is too strong for them or by a problem which is too difficult for them. Usage notes: The French leader Napoleon was finally defeated at the battle of Waterloo in 1815.

Eaxctly Karl. But in Napoleon’s case it took 24 years of wars….And even than he was exiled to St Helena Island in th mid South Atlantic ocean with his own doctor, friends and ‘court’. That’s why I don’t think it completely appropriate. as a phrase about Duterte.

“Whether or not a case can succeed against President Duterte et al. for the killings in connection with the administration’s war on drugs, we must first understand how the International Criminal Court (ICC) operates as a court. Before we discuss whether the spate of drug killings can amount to crimes against humanity, or if the state is unable or unwilling to investigate, or if there exists sufficient evidence to link the drug killings to Mr. Duterte et al., we must first understand the ICC’s legal processes. After all, any legal action we do will be limited by this procedural framework.

The Rome Statute, the treaty that established the ICC, grants the Office of the Prosecutor (OTP) the power to conduct an investigation motu proprio (on its own initiative). This is one of the modes by which the ICC exercises jurisdiction, the other two being through a state referral or a United Nations Security Council resolution.

A state referral, or the process by which the state itself refers a situation to the ICC, is highly unlikely as it is Mr. Duterte et al., state agents themselves, that are potentially charged for the drug-related killings. A UN Security Council resolution, on the other hand, is also unlikely as it depends on the whims of politics and foreign affairs. We have seen this in the UN Security Council’s failure to act on the Syrian crisis.

This leaves us with the third option — the OTP investigating the drug-related killings on its own initiative.

The OTP’s investigative power begins with a preliminary examination on the basis of information submitted to it. Under OTP regulations, the information need not be in any specific form and may be submitted by anyone. This includes information sent by individuals or groups, states, or intergovernmental or nongovernmental organizations.

Can the information be in the form of a written report? A Philippine-style complaint affidavit? Notes written in no particular format? Audio? Video? Compiled in a USB or a CD? Yes. The ICC does not require any specific format to be favorably considered; there is no hierarchy of form in information processing.

Must I fly to the Netherlands to submit this information? Not necessarily. The OTP receives information via e-mail or postal mail. The material can also be handed personally to an OTP staff after an appointment is made, but all information received (whether electronically, through post, or in person) are treated equally. No particular manner of submission is prioritized over the other.

The preliminary examination does not necessarily initiate the criminal action. The OTP simply evaluates if there is reasonable basis to conduct a full-blown investigation. This is where the usual questions come in. Can the drug-related killings amount to crimes against humanity? Were the crimes committed within the timeframe wherein the ICC can exercise its jurisdiction? Does it appear that the Philippines is unable or unwilling to investigate such killings? Are there substantial reasons to believe that an investigation would not serve the interests of justice, despite the gravity of the crime and the interests of the victims?

When there is reasonable basis to proceed, the OTP will file a request for authorization with the Pre-Trial Chamber. If authorized, the OTP then conducts a full-blown investigation. It is this investigation phase that is similar to the Philippine-style preliminary investigation conducted by Philippine prosecutors. During this stage, the OTP may request the issuance of a warrant of arrest from the Pre-Trial Chamber upon satisfaction of certain criteria. The enforcement of the arrest warrant will require state cooperation. The OTP may also request other forms of assistance from the state for the conduct of investigation. Once the defendant is arrested and surrendered to the ICC, court proceedings begin.

What can we learn from this? Let me point out the most significant at this stage. The legal process, as we know it, is not universal. Different court, different rules, different perspectives. Our traditional modes of understanding the legal process must accommodate the complexities of international litigation—of litigating crimes that involve not only one, five, or twelve victims, but thousands, and of putting to trial defendants whose alleged crimes would have been by then committed 10, 12 years before. We must understand that the powers and functions of ICC judges are different from Philippine judges, that a mixed common law and civil law system of litigation requires different responsibilities from counsel. More importantly, we must understand that the ICC, like any international court, requires cooperation from state parties for enforcement of its warrants and processes.

All these call for alternative perspectives. I do not predict the success or failure of any case in the future, but this should be the background against which we realistically set our goals.”

karl, that is a good information from the author of that article in Inquirer, Jenny Jean B. Domino. (She is a lawyer and completed her internship at the International Criminal Court, where she worked with the Office of the Public Counsel for the Defence.) It nicely supplements the discussions here. Thanks.

Thanks, karl! this article filled a lot of gaps for me. It seems very similar to how Fed courts and say the FBI operates over here—- only difference is jurisdiction and scope, but the process is definitely familiar.

“The enforcement of the arrest warrant will require state cooperation. The OTP may also request other forms of assistance from the state for the conduct of investigation. “

This was the most significant sentence for me, the question now is which ‘state’ or ‘states’?

Which states –
– the state whose nationals are being investigated
– 3rd party states, is all those other states that the ICC copy the arrest warrants to requesting them to arrest the inductees when they visit their country

I am perplexed. Chemrock I suggest that the ICC is not he appropriate way to go. Please note I am not defending Duterte and his drug war policies.

I am rather feeling my way towards this question : “Do most Filipinos want this dirty washing aired around the world via the ICC ?” I seriously doubt it. It is the nature of Filipinos to want deal with these sort of things within the Philippines in a Filipino way. The phrase ” Onion skinned” comes to mind. About which my lady & I had an interesting conversation the other day.
I suspect that a lot of Filipinos will be annoyed by an ICC process being launched against Duterte. It will create a lot of shame & embaressment and anger against the individual Filipinos who approached the ICC and against the families who’s members were killed.

I’d like to mention again that Duterte is president because of a presidential type constitution and electoral laws that frankly are not fair or adequate in a modern democracy. Surely it’s worth deeply learning that basic lesson and organisng / mobilising change ?

I think our disagreement of this whole process , plus edgar’s point on self-sufficiency vis-a-vis patriotism , is similar and points to the same place… essentially its all about the polling, with DU30 still popular he enjoys legitimacy, you never take out a guy that enjoys legitimacy, because you make him a martyr;

you erode that legitimacy… i fear that all this ICC stuff will only serve to embolden his support, laws of unintended consequences apply.

I could be wrong, we’ll see how both the ICC (thus international community, if they even care to entertain this) and DU30 (and his supporters) respond. But yeah, Bill, this (if it goes thru) sets all sorts of precedents, i’m sure will play into the ICC calculus.

“5. As I have stated, there must be a strong internal mechanism to unseat a president who is openly performing unconstitutional acts. As impeachment is a weak mechanism, we must look at the Judiciary and other means — say, a public referendum or a recall petition.”

Both of you have totally miss the point of the ICC. I merely wrote on the scenarios of the ICC, there is no suggestion anywhere in there on my personal opinion.

My personal thoughts are these:

1. The ICC is a court of last resort. Where a situation exist, such as here in Philippines, where aggrieved parties no recourse to due judiciary process, the ICC is where they can go to. Put emotions and big picture analysis away, is that really a bad thing? It’s not about your or me or the majority of Filipinos, it’s about aggrieved parties. Like I mentioned, years ago, in recognition of our infancy in judiciary practice as an independent country, Singaporeans last recourse was to the Supreme Courts in UK. From the moral and judiciary grounds, I see no intercession of ICC as a good leveller for countries with poor institutions.

2. With deference to a large segment of the population (I avoid saying majority because we don’t really know, and 16m is not a majority) – Bill’s ‘onion-skinned’ who don’t want to wash dirty linens in public, the argument is this. Past generation of wiser Filipinos see exactly this type of situation happening in foreseeable future — weak institutions and an executive committing atrocities — that was why they helped sign into law the Rome Statute. We could say then that the majority of Filipinos chosed to abide by the Rome Statute since that admin was democratically elected by a ‘majority’.

3. Same point (2) above washes away Lance’s point of eroding the legitimacy of an elected president subjected to ICC. Nobody is higher than the law. And make no mistake, an international law signed by the country becomes a part of the law of the land.

4. Contrary to what you are thinking, I too do not support the idea of ICC nor impeachment. Not for reasons that it will make him a matyr. I would’nt care shit about that. But as I have mentioned in the past, the removal of the president at this juncture will leave a huge unfinished ‘war’ between a terribly divided nation. The next president will inherit a terribly split nation. If it’s a Leni presidency, the 16 million will come at her with daggers. It will be near impossible to govern.

5. My personal opinion is for this presidency to run out. At this rate they are going, the economic problems will come soon, as it’s already evident. I put money in my mouth again that 2018 we will begin see serious economic problems. Cruel as it seems, in the words of Shakespeare “…let the music play on, surfeiting the appetite may sicken and so die”. Let the insanity run it’s course. More people are going to suffer, so be it. Filipinos need to take the bitter pills to learn and relearn their history. Only in this way will the next president have a chance to rebuild the country. And a good note to this — when the insanity is learnt and the people wakes up from this stupor, Bongbong will have no chanve for 2022.

1. chemp, I’m not sure what sort of Singaporean cases went up to UK courts (1965– on?), but say a Singaporean Atty. Sabio requested a similar request of investigation for UK courts to undertake—- let’s say spanking as inhumane, or whatever you can find similar in degree —- and the person that will be investigated is LKY;

would LKY have submitted to such an investigation (Duterte’s already said he’ll submit, but I’m more curious how some one like LKY who has a vision for Singapore would have responded to such an investigation, chemp, submit, or exercise sovereignty?). a thought experiment if you will…

2. “We could say then that the majority of Filipinos chosed to abide by the Rome Statute since that admin was democratically elected by a ‘majority’.” Let’s say given Duterte’s example: “You want to try to do everything to put me in prison, please go ahead … if it is my destiny to go to jail then I will go to jail, if somebody will kill me for killing the idiot drug people, so be it, I die.” Let’s say the ICC is accepted and abide by, then what’s the precedence here? the ICC becomes the regular “last recourse”, chemp?

Because I guarantee who ever takes over as Filipino President after Duterte, another Sabio will come along, or Sabio himself, and lodge another request, then we go back to edgar’s point… how does a country’s judiciary evolve, if they become beholden to the ICC?

3. I agree, so long as all signees remain so, voluntary subjugate as you’ve said, but that also depends on the ICC i suppose. Whether or not it continues to play favorite, between 1st world and 3rd world (the African Union’s observation and cause of their complaint). It’s like the European Union, in the end people prefer their identities and the specific values that come with it. Whether the ICC will make an example out of Duterte remains to be seen of course, but my point here is that the ICC is still on shaky ground and precisely that it is not yet “the law of the land”.

4. Here we agree. Duterte was elected president fair and square, let him finish his term, unless he does something impeachable, then impeach. If this ICC request becomes successful , then I guarantee you’ll have an ICC 2, then an ICC 3, then a 4, then 5; just like EDSA 1 , 2, 3, 4 …. or like Pacquiao boxing , enough already! no one wants to watch another useless, uneventful bout.

5. “Let the insanity run it’s course. More people are going to suffer, so be it. “ … like I also tell my liberal friends here, we needed Trump cuz we needed a kick in the nutz. Ever since Obama, California ‘s been fracking in the waters and on land, and just yesterday Trump signs an Executive Order to do more, and now my lib friends are up in arms… I’m like we saw those oil drill/rigs together, why no sense of urgency then, but because it’s Trump you guys are mad? c’mon, I said. Wake up.

(a great article nonetheless, chemp… and I totally agree with popoy below, this in particular: “Chemrock’s piece to me is like breaking reason into atoms and integrating them into a solid whole for TSOH to dismantle then re assemble. It’s like portraying medicine is also molecular biology.” )

1. Your question is for posterity. Who can answer that in fairness to one departed. But I’ll leave you with this narrative for you to derive you own gut feel.

There was a lawyer JB Jeyaratnam who was leader of an opposition party. He was the first opposition member and the only one for a long time. Schooled in old English ways, I enjoyed watching him cross swords with LKY. Impeccable English and legal mind plus guts to match LKY. I suspect they had old bones to pick due to a court room affront years ago. JB was once a Judge and LKY a practising lawyer. If that were true, they dropped some rungs in my esteem of them.

Anyway, JB attacked the govt at every opportunity, and therein we see the value of opposition as it kept the govt on their toes. But JB went off tangent often and Lee sued him for libel on many occasions. JB ended his career broken and bankrupt.

Our concern here. The govt charged JB once for falsification of party accounts. JB lost and he appealed to the Privy Council Committee UK. Their Lordships overturned the Singapore court ruling.

By that time Lee felt that the Lordships at UK, different country different ethos, are not in sync with local legal frames of mind. Years later we dropped the last resort avenue to the Privy Council. But the point is, LKY submitted to the UK court decision, because that was the law of Spore then.

2. Your view is with ICC, Edgar’s internalised institutions will not evolve. I think your argument is a roundabout thingy. It’s because of weak internal institutions that we should have ICC. A country that values sovereignty and democracy and don’t wish the shame of an ICC case should endeavour to strengthen their institutions. If they don’t, then they are like children who doesn’t want to grow up. Such children requires supervision.

3. You see political interference in the ICC’s work. In other words, you question the independence of ICC. ICC is run by an international workforce to stress their impartiality. There is no question as to legal framework of ICC. The conspiracy theory of political interference is always there, but it’s always brought up by the state bearing the brunt of their investigation, never the aggrieved parties.

4. We are not in total agreement. I think there should be no ICC and not impeachment, You say impeach him if he has committed an impeachable offence. Actually he has done several. And he can’t be impeached because he gas the numbers in Congress and Senate. So it’s back to ICC, right?

No, not necessarily back to the ICC, chemp… if impeachment is impossible, then let him finish his term! Let the country do some soul searching… but IMHO the country, at least a whole lot of Filipinos, won’t have to because they are satisfied with all this “kill kill kill” , so indict the whole lot of them then?

Re 4 I meant for me it’s no ICC and no impeachment for reasons as mentioned above thread #5. Whereas you say impeach if appropriate. As to the 16m of cos you can’t impeach or jail them. They have been stupid, but broken no laws. So no ICC no impeachment, let the country go to hell and back after 6 years.

https://www.nytimes.com/2017/04/26/opinion/the-injustice-system.html?_r=1 – Miguel Syjuco wrote about the root cause of the support for Duterte – that the Philippine justice system is screwed. Even if whatever group manages to oust Duterte, they will have to reform the entire justice, police and penal system and MAKE IT WORK – they don’t even have to get it to Singapore level, Indonesia would be enough for a start, but make the idea of “rule of law” a reality and not just theory over there:

MANILA — In one jail here, 91 men share a cell so small they take turns sitting down. It’s dizzyingly hot, and there are only two buckets for personal hygiene. And not one of the detainees has been convicted of a crime.

The 93 men packed into the cell next door are also not guilty — at least not yet. Nobody in this city jail has been tried. Each awaits his time in court. One inmate tells me his case has already stretched nearly five years. Many others have been here several months, since President Rodrigo Duterte began his war on drugs a little less than a year ago. The jails continue to overflow. “For every one person processed out,” an inmate told me, “five new ones arrive.”

All Filipinos know that there’s little justice to be had from our criminal justice system. It is toothless and glacial. And its longtime failure is at the root of broad acceptance of Mr. Duterte’s draconian drug war, which has led to more than 4,000 confirmed deaths, with nearly 3,800 more awaiting investigation. Like most institutions in this country, the systems of law and order are thoroughly dysfunctional. The abuses can only ever be rectified by addressing each in turn. But what if the mechanisms to do that are so broken they’re nearly useless?

According to Senate President Pro Tempore Ralph Recto, the judiciary has a backlog of 600,000 cases, with at least a fifth of all trial courts lacking judges. Each year, overworked prosecutors individually handle some 500 cases, while every public defender is responsible for roughly 5,000 clients. The police are also understaffed by 50,000, and officers are assessed not by the number of successful convictions but on the number of suspects charged by prosecutors, whose cozy relationships with cops make them hesitant to reject cases as lacking merit.

Many accused, after being pressed for bribes and languishing in jail for years, end up simply released after the police do not attend trials to testify, or the prosecution is absent or the evidence proves flimsy. Under Mr. Duterte’s predecessor, roughly one in four cases led to conviction — a pittance, but an improvement from the administration before that. Our criminal justice system has never been able to properly exonerate the innocent and punish the guilty.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free
will shall be used against him. Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited.
*****

“In one jail here, 91 men share a cell so small they take turns sitting down. It’s dizzyingly hot, and there are only two buckets for personal hygiene. And not one of the detainees has been convicted of a crime.
The 93 men packed into the cell next door are also not guilty — at least not yet. Nobody in this city jail has been tried. Each awaits his time in court. One inmate tells me his case has already stretched nearly five years. Many others have been here several months, since President Rodrigo Duterte began his war on drugs a little less than a year ago. The jails continue to overflow. “For every one person processed out,” an inmate told me, “five new ones arrive.” ”

When humans are treated worst than animals, they are dehumanized. Remove the eche bucheche of law, that will be a crime against humans, against humanity. When reason assumes the molecules of water, then there is no crime, only evil.

I read this superlative piece (mainit pa) while there was but one comment (NHerrera’s) and lots of thoughts came to mind, but decided to just jot them down and hold them to aspire to be the last comment. Like a housewife’s last word Eh! And this is it after 91 comments indicated after the piece after only two days. The numbers may uphold the correctness of my initial reaction fired from the hip so to speak.

I think the piece comes from a mind that operates like a team, not from a single intellection but a synthesis of many minds which are really pre-nonjudgmental (neutral) but judicial and intra-disciplinary; meaning law and all the other professions have many sub fields and not entire of itself; and which takes science beyond its borders to nourish philosophy. To me only, It is not an attack piece. More like showing, alerting the adversary the strength of its armory as it demonstrates the vulnerability of felony; a thing really good for the citizenry.

Chemrock’s piece to me is like breaking reason into atoms and integrating them into a solid whole for TSOH to dismantle then re assemble. It’s like portraying medicine is also molecular biology. Among gentlemen writers of Old Europe, it’s like the steel gloves slapped on the face challenging nobility or lack of it of those who profess knowledge of and livelihood from law.

I question: Can just anyone have a Waterloo? Can anyone be a little Napoleon without diminishing the symbol of giant Napoleon’s achievement for his country?

JoeAm said once, prose can sometimes sound and look like poetry, here’s a try:

I think the piece comes from a mind
that operates like a team,
not from a single intellection
but a synthesis of many minds which
are really pre-nonjudgmental (neutral)
but judicial and intra-disciplinary; meaning law
and all the other professions
have many sub fields and not entire of itself;
which takes science beyond its borders
to nourish philosophy.

It is not an attack piece. More like showing the adversary
the strength of its armory as it
demonstrates the vulnerability of felony;
a thing really good for the citizenry.

Chemrock’s piece to me is like breaking reason into atoms.
and integrating them into a solid whole
for TSOH to dismantle then re assemble.

It’s like portraying medicine is also molecular biology.

Among gentlemen writers of Old Europe,
it’s like the steel gloves slapped on the face
challenging nobility or lack of it of those
who profess knowledge of and livelihood from law.

I question: Can merely anyone have a Waterloo?
Can just anyone be a little Napoleon without diminishing
the symbol of giant Napoleon’s achievement for his country?

“I question: Can just anyone have a Waterloo? Can anyone be a little Napoleon without diminishing the symbol of giant Napoleon’s achievement for his country?”

popoy,

A very apt question. For me I still very much respect Pres. Clinton, President W. Bush, President Obama; now Pres. Trump. It’s easy to de-humanize people you see on TV everyday, easier still if you don’t know them at all… easy to make judgements and second guess decisions (I’ve done plenty of that), but in the end, I truly believe all 4 men all had good intentions, and meant well.

You are right Lance, governance sometimes requires the spilling of blood . it’s not an easy job. That is why we must know the manner of the man. He must be someone with certain core values , certain moral standards and principles. Like what you said, they had good intentions and meant well.

Now the curious case of kill kill kill, 16 million said it’s with good intentions and he meant well. So what are we to make of it?

the same for me, chemp, in the end the election’s for you to ascertain “the manner of the man”, and whether or not you trust him/her to make the right calls… now DU30 didn’t mince words , he promised to make Manila Bay red, his DDS background he advertised, not hide,

so the manner of the man was apparent and 40% of those who voted agreed.

Just like I voted for Trump because he promised not to do any more nation building or regime change, which we’ve been doing for 16 years now, and I judged the manner of the man and he was the most likely to keep this promise (in comparison to others), regardless of his personality & fitness.

DU30 promised to make the Philippines bleed, he was voted for it, and now he’s doing it. So no matter how you cut it, DU30 is a legit president, in that he’s simply delivering on his promise. Does the ICC also indict a bunch, a whole bunch, of Filipinos for giving DU30 this authority? He ran on “kill kill kill”, chemp.

*******
I haven’t really thought it out but the notion has struck me as to the complicity or responsibility of voters in Duterte’s anti-drug war. Not only voters but commenters like @intuitiveperceiving.

Unlike the Nixon imbroglio, Duterte made it abundantly clear that he would support the killing of drug personalities before the election.

What then is the personal responsibility of the 16M voters?

The legal definition of complicity is being “legally accountable, or liable for a criminal offense, based upon the behavior of another.”

I do not think the 16M voters are legally complicit. In the first place, identifying them with any degree of certainty is impossible.

But I do think they bear a degree of collective responsibility.

“Collective responsibility,” also known as collective guilt, is defined as “a concept in which individuals are responsible for other people’s actions by tolerating, ignoring, or harboring them, without actively collaborating in these actions.”

By this definition, not only 16M voters are guilty. Those who stand by, who ignore and have not uttered a word of protest, are also guilty.

Do the 16M voters bear a greater share of the responsibility? Yes, I would say so. And it is important that they and everyone recognize this for the sake of the future. Choices have consequences.

I must note that the responsibility of the German people for the Holocaust is still being hotly debated.
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Nixon wasn’t a bad leader (per se), chemp, just an overly shrewd politician, and his shrewdness got the best of him eventually… but he drew down Vietnam and alleviated the Cold War by opening up China, also continued the Civil Rights movement, etc. etc.

As for Hitler, he didn’t promise to make the Rhine red with blood, his craziness was incremental.

But my point with complicity here and conspiracy, is that Duterte is legitimate. He promised one single thing in essence to make Manila Bay red with blood (drug war and corruption war), and essentially those who voted him in (and I agree with edgar, those who chose to turn a blind eye, basically also voted for him indirectly) gave him this legitimacy.

So (what I’m trying to get at here), how does the ICC square that? the Filipinos who voted for him want Duterte to do all this. It all goes back to Star Trek’s Prime Directive, so the ICC imposes its own values, from whence does it come? —– it’s the age old quandary of killing a little to save a lot.

I just caught the news that Duterte has been invited by Trump, which I’m sure will add to this legitimacy. If you voted a killer into office, knowing this full well, fully disclosed, nothing hidden; don’t then these resulting deaths, legal or otherwise, fall squarely into the hands of those who voted this killer in?

From the critical reaction, the invitation risks contributing to the continuing de-legitimacy of Trump, not legitimacy of Duterte.

You ask really good questions, as to the ‘will of the people’ in a calculation of the people’s mandate to Duterte to kill. It seems to me to be similar to the concept of the ‘tyranny of the majority’. Can it become accepted law? Should principles of human rights, which guarantee due process, be set aside because most of the people are vengeful against a minority? It seems to me that the whole idea of human rights is to prevent such tyranny, in defense of the minority, not accept it as a legitimate reason to go to ‘duck and cover’. The ICC should consider the dead victims and their families, and not a majority that is detached from the humanistic ideals of human rights.

“Should principles of human rights, which guarantee due process, be set aside because most of the people are vengeful against a minority? “

DU30 ran on 1) war on Drugs; and 2) war on Corruption… those would be your “minority” , Joe, at least as specified by DU30.

Sure due process and human rights, and rule of law can be set aside, the standard though is clear and present danger—- existential in nature. On Corruption you can make an abstract case for imminent danger, but its too abstract, though if you connect it to Drugs less abstract. On Drugs though the threat can easily be satisfied (it passes muster), in my humble opinion (like Mexico) , hence I think his polling is still strong, compared to Trump for sure.

Remember due process, human rights, rule of law, like good manners, are just thin veneers of this thing we call civilization. If your house is burning, there’s no reason to put on your make-up. Can the ICC force you to wear make-up?

as for Trump ‘s de-legitimacy on the visit, good point… I don’t know if it’s a Mar-a-lago visit or a full blown state visit with all the fanfare.

Lance says “DU30 promised to make the Philippines bleed, he was voted for it, and now he’s doing it. ”

This is true. I remember reading Duterte’s statement in the press in November 2015 just after I arrived in the Philippines. And he went on to win a plurality of the voe in May 2016.

For me the real issues are : 1 ) Why & how anybody could gain such big voter support making such promises. What drove so many Filipinos to support such a man ?

And 2) How come such a man was allowed to run for president. He had a reputation as a killer in Davao, before nominating for the presidency. But his nomination was not blocked by the Election Commission or the courts.

I guess most here admit the need to ‘cure’ the current situation. But surely ‘prevention’ would be easier and simply and less costly. And to date nobody is making any suggestions about how to prevent it happening in future.

The attitudes of the masses have been discussed here at length, so I won’t go back over that. It pertains to tribal culture, centuries of subservience, poverty, and mistrust of politicians. People are followers seeking a strong-man to lead them. The PH political system is also personality centered, so deals are struck that are not aligned with western ethics. Duterte allied with the substantial Marcos and Arroyo families.

Right. It cuts across all income and education lines. That was my point the other day. It IS the dominant culture, to act for personal advantage, not national good. There is little sense of nationhood as we know it.

And if I may add: although a lot of the masa and other private individuals in countries with mature democracies also behave for their personal advantage, their institutions and the people who man them generally behave for the nation’s good. And that makes all the difference.

Chemrock, even if people know little of Jesus Christ and Adolf Hitler, They know deep in their hearts one can not be a shepherd and a butcher at the same time so says a fictional lawyer. Hindi ka puedeng maging sabay na pastol at pumapatay ng tao.

legalities sophistry, if ever duterte get ousted there will be no genuine peace and order for another decade or two. I would rather migrate than let another yellow or aquino fañatics rule the country. if you just use your common sense what is happening is a fixing of society, but ignorant people would rather imped that. sad, how some term themselves as elite or learned but those guys are just a bunch of baggage that will forever prevent philippines to progress sad

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